Suppression of material facts — Allegation requiring adjudication: An allegation that the plaintiffs suppressed an earlier partition and alienations concerning the suit property was a matter requiring adjudication on evidence and could not appropriately be conclusively determined in an appeal against the ex parte decree without affording the defendant an opportunity to contest. [Paras 14–16]

Headnotes — Shaik Jaina Vali v. Shaik Abida Khatoon & Ors.

A.S. No.254 of 2023 — D. Ramesh & Alapati Giridhar, JJ. — 24.08.2026
2026:APHC:34733

1. Ex parte decree — Appeal under Section 96(2) CPC — Maintainability:
   An appeal lies against an ex parte decree under Section 96(2) CPC. The plaintiffs' counsel ultimately conceded the maintainability of the appeal. [Para 21]
2. Ex parte decree — Defendant did not adduce evidence:
   Where the defendant had entered appearance through counsel but subsequently did not adduce evidence, and the suit was ultimately decreed ex parte, the appellate Court may treat the decree as an ex parte decree for purposes of Section 96(2) CPC. [Paras 13, 17–19]
3. Ex parte decree — Final opportunity to contest on merits:
   Where the plaintiff and his witnesses were not cross-examined and the decree was passed ex parte, the appellate Court may, in the interests of justice, afford the defendant a final opportunity to contest the suit and have the matter adjudicated on merits, subject to appropriate terms. [Para 23]
4. Order XLI Rule 27 CPC — Additional evidence — Appeal not to be decided without considering application:
   The appellant had filed an application under Order XLI Rule 27 CPC seeking to adduce several registered documents which allegedly had a direct bearing on the dispute. The Court noted that the appeal was still pending and had not been decided by refusing the application for additional evidence; therefore, the appellant could not rely upon the proposition in Satish Chand Surana concerning miscarriage of justice from dismissal of an appeal without deciding an Order XLI Rule 27 application. [Paras 3, 18]
5. Title dispute — Rival registered documents — Requires trial on merits:
   Where the appellant relied upon several registered documents, including prior sale deeds and partition deeds, alleging suppression of an earlier partition and alienations, while the plaintiffs disputed their validity and effect, the truth of the rival claims required determination on the basis of oral and documentary evidence at trial. [Paras 14–16]
6. Suppression of material facts — Allegation requiring adjudication:
   An allegation that the plaintiffs suppressed an earlier partition and alienations concerning the suit property was a matter requiring adjudication on evidence and could not appropriately be conclusively determined in an appeal against the ex parte decree without affording the defendant an opportunity to contest. [Paras 14–16]
7. Ex parte decree — Natural justice — Opportunity of contest:
   In the circumstances of the case, particularly where the plaintiffs and their witnesses had not been subjected to cross-examination, the Court considered it just to restore the matter to the trial stage so that the defendant could contest the claim and invite a decision on merits. [Para 23]
8. Costs — Condition for remand:
   The indulgence of setting aside the ex parte decree and remanding the suit was granted subject to payment of Rs.50,000/- as costs to the plaintiffs, representing the delay and circumstances attributable to the appellant. [Para 24]
9. Conditional order — Default in payment of costs:
   The order setting aside the ex parte decree and remanding the suit was expressly made conditional upon payment of Rs.50,000/- within three weeks. In default, the appeal would stand dismissed without further reference to the Court. [Para 24]
10. Remand — Expeditious disposal:
    Upon payment of costs, the parties were directed to appear before the Trial Court on 15.09.2026, and the Trial Court was directed to proceed with the evidence and dispose of the suit afresh, preferably within four months from 15.09.2026. [Para 24]
11. Party cooperation — Protraction of proceedings:
    Both parties were directed to assist the Trial Court in completing the trial within the stipulated period. If either party failed to cooperate or attempted to protract the proceedings, the Trial Court was authorised to take the next appropriate procedural step or impose costs according to the stage and circumstances of the case. [Para 24]

Core Ratio

An appeal lies under Section 96(2) CPC against an ex parte decree. Where the defendant had entered appearance but did not adduce evidence, and the plaintiff and his witnesses were not cross-examined, the appellate Court, in the interests of justice, may set aside the ex parte decree and afford the defendant a final opportunity to contest the suit on merits, particularly where the defendant raises substantial questions concerning prior partitions, registered documents and suppression of material facts. Such relief may be granted on terms, including payment of costs and a time-bound remand. [Paras 21–24]

Final Order

• A.S.No.254 of 2023 — Allowed on terms.
• Ex parte judgment and decree dated 05.01.2023 in O.S.No.59 of 2015 — Set aside.
• Suit remanded to the Trial Court for fresh disposal.
• Appellant directed to pay Rs.50,000/- costs within three weeks.
• On payment, parties to appear before the Trial Court on 15.09.2026.
• Trial Court directed to dispose of the suit preferably within four months from 15.09.2026.
• Failure to pay the stipulated costs within three weeks would result in the appeal standing dismissed.
• Pending miscellaneous applications closed. [Para 24]